Passionate about IP! Since June 2003 the IPKat has covered copyright, patent, trade mark, info-tech, privacy and confidentiality issues from a mainly UK and European perspective. The team is Eleonora Rosati, Annsley Merelle Ward, Neil J. Wilkof, and Merpel. Nicola Searle is currently on sabbatical. Read, post comments and participate! E-mail the Kats here

The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy

Thursday, 31 December 2009

As the first IPKat post of the New Year the Kats would like wish their readers a very happy, successful, and safe 2010!

Nokia went a step further last Tuesday in their continuing patent dispute against Apple by filing a complaint to the US International Trade Commission alleging that Apple infringes seven Nokia patents “in virtually all of its mobile phones, portable music players, and computers." This complaint follows the original October patent suit filed in Delaware by Nokia against Apple and Apple’s countersuit alleging Nokia is infringing 13 Apple patents. Paul Melin, general manager of Nokia’s patent licensing stated that “[w]hile our litigation in Delaware is about Apple’s attempt to free-ride on the back of Nokia’s investment in wireless standards, the ITC case filed today is about Apple’s practice of building its business on Nokia’s proprietary innovation. For more information see this article in the Guardian and this article in the FT.

The environmental group Save the Earth is suing Hondafor the appearance of a t-shirt bearing the eponymous trade mark in one of Honda’s advertisements for their Civic automobile. Save the Earth alleges that the appearance of their trade mark in the ad could lead viewers to believe that they endorse the automobile. For more information please see this article in the New York Times.

News from the 2010 New Years Honours – The IPKat would like to congratulate Dr Michael Thomas Barlow who has been awarded an OBE for “services to intellectual property law”. Dr Barlow has an MA and D. Phil in Chemistry from the University of Oxford. Until November 2008 he was Head of Global Patents and Technology Law for BP. He is on the committee of the IPO’s Business to Business (B2B) Licensing Group which develops materials for SMEs on IP licensing (see here) and co-author of the 2003 Royal Society report entitled “Keeping Science Open – the effects of intellectual property policies on the conduct of science”.

Wednesday, 30 December 2009

From rainy London... Wednesday whimsies for the last Wednesday of this year 2009.

Celebrity watch blogTMZ today reports that shoes manufacturer Gwyneth Shoes last week filed a "trade mark and patent infringement" law suit against Paris Hilton over "a heart-shaped pad on the insole" of Ms Hilton's new shoe collection. According to TMZ the incensed shoe Gwyneth Shoes claims that they had filed to patent the "heart cushion" in 2007 before Ms Hilton's shoes were launched. If you are interested, please click here to see an "exclusive" comparison of the infringing footwear. This Kat trusts that Amerikat will follow this exciting case for us.

The BBC todayreports that Chinese author Mian Mian has filed a law suit against Google, seeking rather modest damages of 61,000 yuan (£5,576) as well as a public apology from Google. Ms Mian filed the law suit back in October after Google had scanned one her novels ('Acid House') for its online library. According to the BBC report, the Beijing court has suggested that both parties consider settlement talks. It appears that several of Ms Mian's 'risque novels' are banned in China. If you are intrigued, click here to read the BBC's full report. More about Ms Mian, can be found here.

In other news - again concerning Google, reported by PCWorld.com, we learn that Google has lost its domain complaint against Canadian web development company 207 Media which had registered the domain name "groovle.com". The 'ICANN-approved arbitration body' National Arbitration Forum decided that the addition of the letters R and V sufficiently removed both domains conceptually, with the groovle.com mark alluding to "groove" or "groovy". To read this decision (reference: Google Inc. v. 207 Media; Claim Number: FA0911001293500 of 24 December 2009), please click here.

Finally, some cosy fabric news from website Fibre2Fashion which tells us that Nepali Pashmina will 'finally' launch its trade mark in the domestic Nepali market in 2010. The brand name ‘Chyangra Pashmina’ which will be protected as a national trade mark and official hologram. Mr Shankar Prasad Pandey, the president of the Nepal Pashmina Industries Association (NIPA), is cited as saying that the trade mark would only be available for use by NIPA members.

Tuesday, 29 December 2009

The Telegraph today reports on the British government’s 'impact assessment document' which examines the likely effects of The Digital Economy Bill ('championed by Lord Mandelson'). Also see the IPKat's earlier report here.

The assessment document written by Lord Young (Department for Business Innovation and Skills) and Lord Davies (Department of Culture Media and Sport) predicts that over the next decade consumers will pay about £290 to £500 million "... as ISPs pass their increased costs on to consumers", The Telegraph tells us. The British consumer is likely to foot the bill by having to pay an extra £25 a year to the cost of broadband. At the same time it is estimated that the Bill will result in an additional £1.7 billion for the entertainment industry over the next ten years.

The IPKat wonders.... Is the Bill a good thing? After all, it will be "tackling" illegal file sharers we learn from the No.10 website. Or is it a bad thing? It's "grossly unfair" according to the shadow culture secretary Jeremy Hunt's comment in The Times. Either way, Merpel thinks that it is not interesting enough a topic to stop her from munching on her left over Christmas cookies.... or is it?

Sunday, 27 December 2009

Following major surgery, IPKat team member Jeremy’s mother Constance passed away this morning, Sunday 27 December, at the age of 88.

In keeping with traditional Jewish practice, Jeremy will be observing a full week of morning. During this period he will not be posting items on this or any other weblog and will not be checking his email accounts. Details of arrangements with regard to prayers at the mourners' house may be found here.

Friday, 25 December 2009

The IPKat, Merpel and the AmeriKat (not to mention Annsley, Birgit, David, Jeremy and Mark) wish all their readers a peaceful, pleasant and prosperous season of winter festivities and look forward to continuing to serve them with lots of exciting IP news, information and comment in the coming year.

The IPKat's not quite sure what it's doing on the website of the Official Journal of the European Union, or whether it has any legal status, but on Wednesday there appeared a 56-page Explanatory Report on the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Lugano Convention of 30 October 2007), penned by Fausto Pocar (Professor of International Law at the University of Milan). The report has lots to say about intellectual property: you can read the IP bits on PatLit here.

Iconic children's favourites Peter Rabbit and Jemima Puddle-Duck (right) are among the Beatrix Potter characters destined for a make-over as their publisher Frederick Warne and licensing agent Chorion determine how to make them more palatable to the more sophisticated tastes of the 21st century child. According to this article in The Guardian, this is an exercise in 'democratising' what is seen as a posh-to-middle-class brand. The IPKat speculates that the made-over Jemima Puddle-Duck might look something like the picture on the left.

Wednesday, 23 December 2009

According to a WIPO press release issued recently, a Florida-based company, “Federated Institute for Patent and Trademark Registry” (FIPTR), has been caught running various scams involving sending out misleading letters to IP rights holders that look like invoices. Some of these were aimed at applicants for international patent applications, but many others involved requests for payment for supposedly registering trade mark rights and copyrights. These services had, of course, no value.

All this comes as welcome news to the IPKat's ears, but he suspects that there are many more unscrupulous operators out there who will be carrying on regardless. From recent personal experience he knows of at least two that are currently operating, one being known as International Bureau for Intellectual Property (their logo is pictured here on the left), the other known as the Register of International Patents. Redacted example letters from each can be viewed here and here, courtesy of the IPKat's Google Groups file server. The client in each case was, of course, told to ignore the letters but the IPKat has a nagging feeling that perhaps not all clients would be sufficiently suspicious of such official-looking letters.

Bearing in mind the similar trade-mark related scam the IPKat reported here, do the IPKat's readers have any further thoughts, examples of other similar scam merchants, or perhaps any ideas of what to do with them?

The most recent issue of the UK Intellectual Property Office's Insight carries a fascinating short piece entitled "Patent infringement clearance: What? When? How?" [Whatever happened to 'Why?', wonders the Kat]. The piece, by Ian Hartwell of the Centre for IP Policy and Management, Bournemouth Business School, reports the findings of a survey of UK and German engineering companies. It goes as follows:

"[If you have the good fortune to work for a large patent-owning member of a cartel which has been sanctified by the name of a 'standards setting organisation', you can start cooking your Christmas goose now. If not, read on ...] How much effort should a company invest in trying to avoid patents belonging to its competitors? Should the IP manager investigate competitor patents at an early stage in the product development project and risk wasted effort if the product design subsequently changes? Or wait until the product has been developed before searching for blocking patents? Faced with a blocking patent, should the IP manager try to invalidate, design around or seek a licence? And how much money to spend - there is no point carrying out comprehensive clearance if it leaves no money to bring the product to market. [The range of options is more subtle in reality, since IP managers are constantly able to reassess their position in relation to each piece of information, or response from a third party patentee, as they receive it.]

With a view to providing IP managers with more guidance on how to deal with these pressing issues, a survey has recently been completed by Ian Hartwell of CIPPM Bournemouth, himself a former IP manager for Cambridge-based companies Xaar and Cambridge Display Technology and now a consulting European Patent Attorney with Maguire Boss. The study was supported by the Research Fund of the European Patent Office [Well done, EPO: money well spent!].

What?

Based on confidential interviews with the IP departments of ten UK and German companies in the automotive industry [A small and highly-focused sample, in an industry where players and fields of technology are relatively easy to identify: it will be good to run this research again an a less homogenous sector, such as industrial software applications], the survey revealed wide variations in practice. For example, forty percent of the companies surveyed did not consider it necessary to monitor new patent publications in their area of technology. Of those companies that did monitor, most delegated the task to technologists [Do patent attorneys count as 'technologists' for this purpose, wonders the Kat].

Patent office search reports are another source of patent publications and, although the primary purpose of such reports is the assessment of patentability, a majority of IP managers indicated that they also reviewed the claims of any patent documents cited in the report for relevance to the company’s new product development (NPD) plans.

When?

IP managers or professional searchers also carried out dedicated searches for third party patents relevant to a company’s NPD plans. Most dedicated searches were carried out mid-way through a development project, although a smaller number of companies carried out searches at the initial "ideation" stage [Presumably, midway is the point at which the NPD has got to the stage at which the searching is less speculative and more focused].

How?

Where a problematic patent was identified, the preferred action of most companies was to carry out searches to discover earlier publications that might put the validity of the patent in doubt. Only if this was not successful would most companies try to change the design of their product to avoid the patent. Seeking a licence to the patent was a measure of last resort for most of the companies surveyed [This is really sad. It generally costs less to seek a licence, and the nuclear option of going for invalidity remains available if no licence is forthcoming].

However, the survey revealed that, even if relevant earlier publications are found, this does not necessarily lead to the problematic patent being revoked. One tactic, known as "umbrella protection", is for an IP manager to seek a free licence from the patent proprietor in return for not seeking revocation of the patent. Since this free licence is not granted to other companies, the IP manager also gets the exclusionary benefit ("shelters under the umbrella") of the patent [Unless, presumably, another prospective infringer develops a product that cuts across the earlier patent's claims too?].

Commercial approaches

The full survey report paints a picture of an industry where, as a result of swingeing financial penalties for stopping automotive production lines, court injunctions are infrequent and licences are typically available [This makes it look as though the system is working quite well, then]. Consequently, few companies feel the need to pursue a policy of "never knowingly infringing a valid patent", employing more nuanced, "commercial" approaches instead".

Fumbling around on his browser, the IPKat hasn't been able to track down the full research report, to which the Insight article offers no link. He hopes that it will be available soon, since he thought this to be one of the most refreshingly practical and valuable bits of contemporary empirical IP research that he has seen for a while.

If you were thinking of sending your friends at the United Kingdom's Intellectual Property Office a Christmas present, take note: says the IPO:

"Please note that our Office at 21 Bloomsbury Street will be closed on 24 December 2009. You will still be able to leave documents (in sealed packages) with the security guard.

This is not an excluded day and as such anything received on 24 December 2009 will get that filing date".

The activities of intellectual property administrators in the UK must be quite boring when contrasted with that of their counterparts in India, where The Times of India reportson litigation on the question whether geographical indication status can be conferred upon a religious offering, theTirupati laddu. At the heart of this dispute is the question whether the GI registry can be deemed to be the custodian of the interests of a deity. Noting that the Lord is universal and omnipotent, counsel opposing the application described it as "a glaring example of commercialisation of divine affairs". Thank you, Secular Citizen R. S. Praveen Raj, for the link.

This month's Alicante News, published by the Office for Harmonisation in the Internal Market and increasingly fun to read, now that it's getting less formal, focuses on Lithuania, giving lots of trade mark and design-related information about that dynamic Baltic jurisdiction. Biggest domestic owner of Community trade marks is AB Stumbras -- a company of which the IPKat is ashamed to say he's never heard until today. The company's principal product appears to be vodka. Although he generally keeps to the finest single malts that Scotland can produce, the Kat is generally willing to review a bottle of vodka for the sake of goodwill ...

The IPKat has just learned that the World Intellectual Property Organization (WIPO) is conducting a survey to find out how the Lisbon System (based on the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration of October 31, 1958) might be improved, for the System to become more attractive for users and prospective new members. European trade mark representative organisation MARQUES is preparing a paper to be submitted to WIPO and asks it members to submit any relevant suggestions (not just legal or administrative ones) for its improvement by email hereby not later than 15 January 2o1o. If you're not a MARQUES member but still want to comment, you can out more about the survey here.

A keen reader has written in to ask the IPKat the following question: "Are there any jurisdictions in which the co-owner of a patent can license the use of that patent without the consent of the other co-owner(s)?" The Kat knows a fair bit, but he's not that knowledgeable. Suspecting that there may not be many such jurisdictions, he throws the question open to his readers in the hope that they can help him compile a little list. If you know of any such jurisdictions, please post the relevant data below.

So much is going on below the border that it is sometimes easy to forget that Scotland, with its own laws and court system, has a great deal to offer the intellectual property community. The IPKat was therefore delighted to receive a mighty book, Rights of Personality in Scots Law: a comparative perspective, edited by Niall R. Whitty (a visiting professor at the University of Edinburgh) and Reinhard Zimmermann (a distinguished civil lawyer who holds posts in Hamburg and Regensburg). This tome, published earlier this year by Dundee University Press Ltd, is the fruit of a conference held in Strathclye in May 2006. It features contributions by a number of eminent scholars, drawn from several jurisdictions (both common law and civil law, plus that fascinating hybrid, South Africa). 6 of the book's 12 essays have a high-fibre Scottish content, which means that it draws the reader both inwards, into Scots law itself, and outwards into the comparative analyses. Unusually, given that the IPKat is a great IP enthusiast, he found the non-IP essays as compelling as those on his favourite patch. You can visit the book's web page here. At £40 for some 600 pages of hadback scholarship, it must be the bargain of the year.

Tuesday, 22 December 2009

The existence of last week's ruling of the Court of Appeal for England and Wales (Lord Neuberger of Abbotsbury MR, Jacob LJ and Richards LJ) in Dr Reddy's Laboratories (UK) Limited v Eli Lilly and Company Limited[2009] EWCA Civ 1362 has already been noted on this weblog, but not much has been said about its substance.

This was the appeal by Dr Reddy's against the refusal of Mr Justice Floyd (noted here by the IPKat) to revoke Eli Lilly's patent for olanzapine, an anti-psychotic agent used in the treatment of schizophrenia. According to Dr Reddy's, the patent was a pretty sick one since it suffered from (i) an acute deficiency of novelty over a prior disclosure made by Eli Lilly in an earlier patent; (ii) glaring obviousnessness over the same patent and (iii) a further bout of obviousness which had been brought about by the earlier publication of an article by one of Eli Lilly's scientists.

On appeal, Dr Reddy's argued that, although olanzapine was not mentioned specifically in the earlier patent (it being just one of the 86,000 compounds of a preferred chemical class), the patent in suit nonetheless lacked novelty because, in the language of the European Patent Convention 2000 Article 54 it formed "part of the state of the art" having been "made available to the public by means of a written... description". What's more, the validity of this patent -- which was after all only a selection patent -- had to be assessed in the light of the earlier patent, in accordance with the rules set out in re IG Farbenindustrie AG's Patents (1930) 47 RPC 289; this being so, a sub-class or individual member of a prior art published class was taken to be obvious if it was a random selection from the earlier class.Finally Dr Reddy's submitted that the judge shouldn't have rejected the evidence of its expert witness.

The Court of Appeal, for whom Lord Justice Jacob was the principal mouthpiece, dismissed the appeal. In its view

*Dr Reddy's first contention essentially meant that every disclosure of a chemical class disclosed every single member of that class. However, it made no sense to say that a generalised prior description disclosed each specific matter which fell within it.

* What the court had to look for by way of anticipation was an individualised description of the later claimed compound or class of compounds -- which was not the case here.

* To avoid a finding of anticipation, a patent for a compound or sub-class had to disclose something special about the compound or sub-class. It was most unlikely that the courts of any other member of the European Patent Union would pay any attention to English pre-1977 jurisprudence such as IG Farbenindustrie AG's Patents , which the European Patent Office (EPO) itself did not apply.

* It was better to follow the EPO and deploy the objection of obviousness where a patent had in truth made no technical advance. A patent would be obvious if it was founded on no more than an arbitrary selection from a previously disclosed class of compounds. This was because, in such circumstances, the patentee would have provided no technical contribution.

* In this case, by identifying olanzapine and disclosing what it had about its properties, Eli Lilly had not made an arbitrary selection. Accordingly the inclusion of that particular compound in its research had not been an obvious step to take.

* In reaching his decision Floyd J heard evidence from numerous witnesses and was entitled to come to the conclusion which he reached.He hadn't misunderstood the evidence or argument, failed to have regard to relevant evidence, or disregarded relevant evidence.

The IPKat thinks the Court of Appeal is dead right and welcomes its clarification of the treatment of selection patents which, when he was a kitten, seemed to him to fit most uncomfortably within the criteria of patentability once the preferred class had been identified. Merpel likes the comments made by Lord Justice Jacob on the (ir)relevance of foreign decisions, which you can find on PatLit here.

"91. I would therefore conclude that there is nothing in those decisions which compels or leads me to conclude that my earlier analysis is incorrect. I am quite satisfied and so determine if necessary that the principles of cause of action, issue estoppel and abuse of process can apply to a second attempt to challenge the validity of a Trade Mark after invalidity proceedings. Although the Hormel case [noted here by the IPKat] dealt with an unsuccessful challenge to validity; the converse is equally true. It cannot be right to allow the Defendant to seek to re-run a successful adverse decision on validity against it."

The effect of this judgment is that an invalidation action before the registrar may give rise to res judicata and that re-litigation between the parties may be an abuse of process. In the above case a decision by a hearing officer that the registered proprietor’s trade mark should not have been registered, as use of it was liable to be prevented by the law of passing-off, gave rise to the granting of summary judgment in favour of the plaintiffs in relation to their claim of passing-off before the court. Smith J distinguishes between oppositions and applications for invalidation. (It was decided by the Court of Appeal in Special Effects Ltd v L’Oréal SA[2007] EWCA Civ 1[on which see the IPKat here] that an opposition action before the registrar does not give rise to res judicata and that re-litigation between the parties after a decision in an opposition case would not be an abuse of process.)

Smith J's judgment has clear ramifications in relation to the effects of invalidation cases brought before the registry which include grounds under sections 5(1), 5(2), 5(3) and 5(4) of the Trade Marks Act 1994. Owing to the significant consequences that could arise in civil actions for infringement and/or passing-off subsequent to a decision of the registrar, it has been decided that invalidation actions that include grounds under sections 5(1), 5(2), 5(3) and 5(4) of the Trade Marks Act 1994 will be decided following a hearing. Rule 62(1)(c) of the Trade Marks Rules 2008 states:

"62.—(1) Except where the Act or these Rules otherwise provide, the registrar may give such directions as to the management of any proceedings as the registrar thinks fit, and in particular may—

(c) require a party or a party’s legal representative to attend a hearing;"

In relation to the aforementioned cases the parties or their legal representatives will be required to attend the hearing".

The IPKat thinks this is a good way to ensure that the party losing first time round will at least be saved the wasted expectation of success in later proceedings. Merpel disagrees: how many times since the 1994 Act came into force has re-litigation and estoppel been a problem, she mews. If it happens so rarely, why put parties to the extra expense and possible inconvenience in what should be swift, cheap and relatively simple proceedings for the sake of a might-be in the future? Tufty wonders whether there is an appeal in the offing in the Firecraft case. All the Kats in unison wonder how much consultation there was between the IPO and the trade mark professions and bodies representing trade mark owners in the UK before taking this decision.

Do-it-yourself estoppel on Wikipedia here (a great chance to rewrite the law -- and add your own footnotes!)Déjà vu here, here, here and hereSecond time lucky here

Austrian news site Der Standard recently reported on the next chapter in a curious trade mark dispute between an Austrian pumpkin seed oil producer and pharmaceutical company Pfizer over the use of the mark "Styriagra" on pumpkin seed pills.

About a year ago, the Class 46 blog reported that Richard Mandl, a pumpkin seed oil producer from the Austrian region of "Styria" (German: Steiermark), was selling chocolate coated pumpkin seeds under the name "Styriagra". Those (oval shaped) Styriagra pumpkin seeds were dyed in a blue colour and offered as natural erectile dysfunction remedy. Mr Mandl had also filed for trade mark protection: International trade mark No. 957917 Styriagra covering class 30 and 31 and designating Switzerland and the European Union based on an Austrian national mark.

Even in those early days, Mr Mandl was adamant that there was no connection between Pfizer's Viagra and his Styriagra pumpkin seeds. His product name derived from the word "Styria" which is the Latin name of the Austrian province Steiermark, where his business is located, and the words "agra" and "Agrar". The latter were meant to be denoting the agricultural and organic origin of his product. Even the choice of the colour blue was coincidental Mr Mandl told the interested readers of Austrian newssite Krone and German newspaper Die Sueddeutsche Zeitung and he revealed that he also offered pumpkin seeds coated in other colours. Pharma giant Pfizer was neither sidetracked nor impressed by this argument, in particular since Mr Mandl's mark also used the colour blue, and early reports suggested that Pfizer intended to take legal action against Mr Mandl.

One year on, the Austrian Oberste Gerichtshof (OGH) has decided (case reference 17 Ob15/09v ). Pfizer had indeed taken the matter to court. While the court of first instance had decided in Mr Mandl's favour, the court of Appeal as well as the OGH found that Mr Mandl's little organic pills had taken unfair advantage of the distinctive character and the repute of Pfizer's Viagra trade mark.

Mr Mandl had used a mark (Styriagra) that was similar to an earlier mark with a reputation (Viagra). Referring to the ECJ's decision in L'Oreal v Bellure, the OGH took the view that Mr Mandl had attempted "to ride on the coat-tails of that mark in order to benefit from its power of attraction, its reputation and its prestige, and to exploit, without paying any financial compensation" and had unfairly taken advantage of the distinctive character or the repute of that mark.

The OGH also rejected Mr Mandl's argument that "Styriagra" had to be considered as a so-called 'trade mark parody' (Markenparodien), a concept established by the German Federal Supreme Court in the famous purple post card case (Lila Postkarte, BGH case reference I ZR 159/ 02). The German court had decided that trade mark parodies could, under certain circumstances, be considered as satire and thus be protected under the constitutional rights of freedom of art and freedom of expression. In cases of conflict freedom of art/expression have to be balanced with the conflicting trade mark rights. The OGH in principle agreed with the German court's approach. However, while "Styriagra" could be considered as a humorous reference, it was not an expression of artistic creation. Furthermore, Mr Mandl's main motives were clearly of a commercial nature.

This Kat can't help feeling a little sorry for Mr Mandl, in particular since news site Krone also reports that Mr Mandl's marriage has broken down over this court case and he only ever sold 1200 units with a turnover of 1824 Euro. Given that the OGH's decision appears to be a preliminary ruling at the appeal stage, further chapters in this slightly surreal dispute can be expected.

Monday, 21 December 2009

The IPKat's friend, Advokat Mats Björkenfeldt (Hjalmar Petris Advokatbyrå HB, Sweden) is known to have some strong opinions on various areas of intellectual property law (see earlier IPKat posts here, here and here). Well, now he's having another rage! This time he writes:

"The more I read about European Trade Mark Law and Unfair Competition, the more confused I get. The latest is this: I read in EU Competition Law in Context, Hart Publishing, 2009 [details here], the following:

Nina Korjus, réferendaire to a judge at the General Court of the European Union, has in that book an article called "Unfair Competition and Trade Marks". When it comes to ‘Dilution and free-riding’ she says that there are ‘three types of injury against which Article 5(2) of the [Trade Mark] Directive ensures such protection for the benefit of trade marks with a reputation…’ But when she analyses the LÓréal case [see earlier IPKat posts here and here], she could not find any injury; instead she gives this answer to the outcome of the case in the end of her article (p. 181):

‘Protection of trade mark rights is important not only for the right owners but also for the society as a whole. In fact, it is in the interest of countries to have the strongest possible enforcement mechanism to protect the investment climate and labour markets and also to reduce the loss of tax revenues that are directly affected by the lack of efficient protection against, inter alia, trade mark counterfeiting. Efficient protection of trade mark rights against unfair competition should thus be provided…’

But, one question is still unanswered: if there's no injury in sight, in what way is the ‘investment climate’ influenced by a free-rider?"

Good point, says the IPKat, if my return on investment is not diminished by another's activity, why should I worry? Merpel says, I'm not so sure the question is a valid one: a failure to obtain a maximised profit is as much a part of the 'investment climate' as the likelihood of actual damage, is it not?

Have you booked yet for CLT's Annual Intellectual Property Law Round-Up conference for 2010, which will be upon us on 28 January 2010. The venue is somewhere or other in Central London and IPKat team member Jeremy will be in the chair. To be sure of your booking, or for further particulars of the star-studded programme, click here.

The 1709 Blog asks this morning whether thierry Ehrmann's Abode of Chaos, currently threatened with destruction by a French court, might be able to claim the benefit of copyright protection and, if so, what would be the scope of protection available to it. For further information clickhere.

The full text of the judgment isn't yet available on BAILII, but the decision of the Court of Appeal for England and Wales in Dr Reddy's Laboratories (UK) Ltd v Eli Lilly & Co Ltd [2009] EWCA Civ 1362 is noted in this morning's Lawtel subscription service. The Court dismissed Dr Reddy's appeal against the decision of Mr Justice Floyd (noted by the IPKat here) not to revoke Eli Lilly's patent for the anti-psychotic olanzapine. Further comment on this decision will appear in due course.

If you've been following the Copenhagen climate talks last week and have been a bit confused by all the name-calling and accusations, you may not have spotted that intellectual property rights have not been explicitly mentioned in the final text of the Copenhagen Accord. For further information see this piece by Tove Iren S. Gerhardsen for the ever-vigilant Intellectual Property Watch.

Sweet & Maxwell has been swift to get its 2010 periodicals out ahead of the Christmas break. The IPKat has already received his copies of the January 2010 European Trade Mark Reports (which leads with the Belgian Court of Appeal decision in eBay v Polo/Lauren on the use of trade marks as search engine terms and 'essential function' doctrine) and the European Intellectual Property Review (there's an interesting piece by Terese Foged on licensing schemes in an on-demand world).

Sunday, 20 December 2009

• Microsoft’s Bing Attacked: Bing Information Design, a small Missouri company, filed a trade mark infringement and unfair competition lawsuit against Microsoft in a St. Louis circuit court last week. The design company offers computer-related illustrations and services and has used the name “Bing” since 2000. In May of this year, the company applied to register “Bing!” as a trade mark. The USPTO initially refused the application, giving the company six months to file supporting documentation. Microsoft, meanwhile, had applied for a trade mark two months earlier in March for the mark “Bing” (sans the exclamation mark). A Microsoft spokesperson stated that “We believe this suit to be without merit and we do not believe there is any confusion in the marketplace with regard to the complainant’s offerings and Microsoft’s Bing product.” For more information see this article in the Seattle Post Intelligencer.

• Monsanto To Let it Grow: In 2014 Monsanto’s patent for Roundup soybean seeds will expire – the first patent expiration on a widely used bioengineered crop. Last week Monsanto sent letters to seed companies and farmers saying that it would allow farmers to continue to grow the Roundup Ready 1 soybeans even after the patent expires. The letter came after previous impressions that Monsanto planned to force farmers to begin using the more expensive Roundup Ready 2 Yield which is under patent. Monsanto’s letters come as the Justice Department has launched an investigation into possible antitrust concerns in the company – concerns which the company states are baseless. The AmeriKat thanks Stephen Kissock for bringing this excellent article in the New York Times to her attention.

• Arretez! Google Loses in France: A French civil court fined Google 300,000 Euros last week for infringing copyright in books by placing them online without permission and ordered them to stop scanning French copyright books. The 2006 action was brought by publisher La Martinère on behalf of French publishers. "This should serve as a real wake-up call for Google, and will no doubt give ideas to other countries who take copyright seriously," said Yann Colin, a lawyer for the publishers. Google said that it plans to appeal the decision. For more information see this article in Bloomberg and this article in the LA Times.

• USPTO creates an App for Pending Apps: The USPTO announced last week that it in effort to reduce patent pendency and increase transparency the USPTO has created an interactive Patent Pendency Model (PPM). According to the USPTO press release, the PPM “enables users to see how both first action and overall patent pendency periods are affected by changes in staffing and filing levels.” The tool, available online, will help users estimate pendency periods using “historical data to make calculations and create graphs of predicted outcomes.” Excel spreadsheets, graphs, and patent pendency – what more could the AmeriKat want for Christmas?! To entertain your friends and family this holiday season please click here to access the PMM.

On Friday, after one of the most hectic pre-holiday weeks she has endured and only three hours of sleep, the Amerikat pushed herself out of bed at 4am to peer outside at the blustery snowflakes dancing their way around the streetlights. Where on any other day the crystalline structures may have induced a feeling of warm holiday spirit, today she only saw them as the last hurdle between her and her flight home. It is safe to say that the holiday spirit, like Bob Dylan, was not in her heart – she was ‘bah-ing’ at the snow, “humbug-ing” at the novice travellers delaying the security queue ("Yes M’aam you do have to take off your solid steel belt to go through the metal detector …") and generally tutting at any reindeer sweater that she was presented with. Exhausted and crabby (should that be tabby?), she boarded her flight to Dallas with only a small hope that it would take off on time. However, a true Christmas commuter miracle occurred: the Boeing 777’s wheels were up on the dot at 10:15am, she had three spare seats to herself, and she slept for an undisturbed five hours. Bounding off the plane in a disgustingly sunny Dallas/Fort Worth, the AmeriKat was now infused with holiday cheer. Back at home and gazing at the twinkle lights glittering her house, the AmeriKat would like to wish you and yours a very happy festive season! Happy Holidays!!! [Says the IPKat, the AmeriKat has been given a week off next week on account of her good behaviour, but he expects her back for the following week, under pain of exile ... to the dog-house!]

Obama supports WIPO Treaty

In Geneva last Tuesday the Obama administration announced before a subcommittee of WIPO that it supported the WIPO Treaty for Sharing Accessible Formats of Copyright Works for Persons Who are Blind or Have other Reading Disabilities. The Treaty would lessen international copyright protection in order to enable cross-border distribution of DRM-protected digitized books that blind and visually disabled individuals can read with tools like Pac Mate and Victor Reader. Although many WIPO nations have copyright exceptions that generally permit non-profit organizations to use copyright works without permission, the permission only goes as far as the borders of each country. The Treaty would lift the border restriction and enable use outside of a country’s shores and national copyright laws.

Such a move, of course, puts the administration at odds with many US industries including software manufacturers and motion picture associations who have opposed the treaty. Where these industry players are supporting another treaty, the Anti-Counterfeiting and Trade Agreement (ACTA) which would greatly strengthen their copyright protection, the WIPO Treaty would be in effect weakening some of this protection. Comments in response to the US Copyright Office’s Notice of Inquiry regarding the WIPO Treaty were received on 12 November 2009. Steven Metalitz, speaking on behalf of industries including the Motion Picture Association of American and RIAA stated in their Initial Comment that, in referring to the WIPO Treaty:

“... among the strategies least likely to advance the goal of increased access by the blind and visually impaired is the path down which the draft treaty points: to begin to dismantle the existing global treaty structure of copyright law, through the adoption of an international instrument at odds with existing, longstanding and well-settled norms."

The AmeriKat suggests you read this letter for an entertaining engagement of the US industries with international copyright treaties, specifically Berne’s Three Step test – which as we all know, is not always the most harmonious of unions.

“In reviewing the initial comments, we are concerned that some of the comments are simply stating opposition to a large agenda of limitations and exceptions. We believe this is an unproductive approach to solving what is a discrete, long-standing problem that affects a group that needs and deserves the protections of the international community.”

“We recognize that some in the international copyright community believe that any international consensus on substantive limitations and exceptions to copyright law would weaken international copyright law. The United States does not share that point of view.”

Some people may think that, for a group of US industries that may benefit from one of the most severe copyright protection agreements in modern copyright law (ACTA), it seems to be a pretty a petty harsh stance to be balking at a proposed limited exception to aid dissemination of copyright works for the benefit of the blind and visually-disabled.

Friday, 18 December 2009

The IPKat's Forthcoming Events side bar hasn't got anything left for 2009, but there are plenty of 2010 events to enjoy -- so be sure to check them out!

That (es)citalopram patent again. Following the IPKat's earlier poston the German Bundesgerichtshof decision on Lundbeck's escitalopram patent, the Kat's plea for an English translation of the German original has been kindly answered by German IP practice Hoffmann Eitle. You can now access the pdf of the translation here.

The UK Intellectual Property Office has announcedthe appointment of a new head: he is John Alty, currently Director General for Fair Markets at the Department for Business, Innovation and Skills. John has "broad experience of business, regulation and markets" [Yes indeed, says the IPKat, but from the potted biography here it seems that this 'broad experience of business' does not include every having been in business ...] and will "work to promote the Government’s innovation agenda, supporting creativity in the UK".

References to the ECJ. The 1709 Blogrecords two copyright disputes that have generated references to the Court of Justice of the European Union for a preliminary ruling. They relate to (i) Case C-387/09, which raises various issues relating to 'fair compensation' under the InfoSoc Directive and (ii) Case C-393/09 on whether a graphic user interface ("gui") falls within the scope of a computer program under the Software Directive and, if so, is copyright infringed when it's broadcast to TV viewers who can see it but can't interact with it. The SPC Blog has picked up a reference generated by a dispute over supplementary protection certificates for patents: it's Case C-427/09, a reference from the Court of Appeal, England and Wales, in Generics (UK) v Synaptech (noted here).

Read with the IPKat. The IPKat has just received Release 31 of Sweet & Maxwell's loose-leafEuropean Patent Decisions, which updates the work to November 2009. If you're a subscriber, check your incoming mail and make sure that yours has arrived too. Also just out is the fifth edition of the Butterworths E-Commerce and Information Technology Law Handbook, of which IPKat team member Jeremy is Consultant Editor. The book was published so swiftly that it came out ahead of its own web page, but if you liked the previous editions so much that you want to buy it on trust, the ISBN is 9781405750295 and the publisher's customer services phone number is +44(0)845 3701234. And here's a book which meets a long-felt need, one which has no current competitors: it's Peter W. Hansen's tome, Intellectual Property Law and Practice of the United Arab Emirates, published from Oxford University Press's New York desk. At US$225 it's fairly priced, given the relatively small and specialist market. Full details available here.

In June of this year the IPKat commented on the Australian decision in Mars Australia Pty Ltd v Sweet Rewards Pty Ltd, where the owners of the trade mark MALTESERS in respect of those tasty little items of confection that kiddies sometimes float in their cold drinks to annoy their parents failed to persuade the tribunal that the defendants' Malt Balls would be confused with them. Well, thanks to Robert Cooper (Mallesons), the Kat can inform his readers that the members of the Full Court of the Federal Court weren't confused either, since they unanimously dismissed the appeal. You can read a short note to this effect on the Mallesons website here. Anyway, the term Malt Balls is descriptive, said the Court. A little like Fur Balls, thinks Merpel.

The free content from the Journal of Intellectual Property Law and Practice (JIPLP) which has been posted on the jiplp blog this week consists of a Current Intelligence note, ‘Leave all love and 'ope behind, out of sight is out of mind’, in which Alex Batteson and Ian Karet (Linklaters) writeon the construction of terms in patent claims in the Folding Attic Stairs case. Enjoy!

The IPKat's attention was attracted this morning to the Commission Decision of 17 December 2009 authorising a health claim on the effect of water-soluble tomato concentrate on platelet aggregation and granting the protection of proprietary data under Regulation (EC) No 1924/2006 of the European Parliament and of the Council, which was published this morning on the Official Journal's website. By Article 2 of this Decision,

"The scientific data and other information included in the studies identified in the Annex to this Decision shall be restricted for use for the benefit of the applicant for a period of 5 years from the date of authorisation under the conditions laid down in Article 21(1) of Regulation (EC) No 1924/2006.".

This Decision follows an application by Provexis Natural Products Ltd, submitted nearly a year ago in relation to a health claim relating to the effects of water-soluble tomato concentrate (WSTC) I and II on the blood platelet activity in healthy people. The claim consisted of the immediately forgettable phrase ‘Helps to maintain a healthy blood flow and benefits circulation’.

Regulation 1924/2006 of 20 December 2006 on nutrition and health claims made on foods, in effectively conferring protection on data relating to health claims, is part of the vast and growing body of European intellectual property law and, a little embarrassed, the Kat must confess that he missed it at the time of its passage. He wonders whether his readers, through their commercial activities or academic pursuits, have any experiences or insights as to the working of this Regulation and as to how it compares with the provisions relating to data exclusivity in the pharmaceutical sector.

Thursday, 17 December 2009

A tricky issue relating to the protection of rights in confidentiality versus freedom of speech was the subject of a lengthy and somewhat repetitive decision of the European Court of Human Rights (Judge Garlicki presiding, Judges Bratza, Bonello, Mijovic, Bjorgvinsson, Bianku and Poalelungi, and L Early) this Tuesday in Financial Times Ltd and others v United Kingdom (App. No. 821/03).

On 30 October 2001 mega-brewery Interbrew, contemplating a possible takeover bid for South African Breweries (SAB), asked its advisers Goldman Sachs to prepare a preliminary working document. Even the existence of the document was confidential: it was market-sensitive since it disclosed a possible takeover bid. A little later, someone obtained a copy of the document and prepared copies of it, which the Financial Times newspaper (FT) claimed to be 'doctored' in that they contained a fabricated offer price and timetable for the bid. That person sent copies of the doctored document to various publishers of news.

An FT journalist, having received a doctored copy, contacted Interbrew whose chief executive officer said Interbrew had been looking at a bid for SAB, but that it was not true that a bid was imminent. On 27 November, the FT published a story based on the doctored copy and on the conversation with the Interbrew's CEO. Other newspaper publishers, having also received doctored copies, also published articles on the bid. The result of these stories being published was that Interbrew's share price fell while SAB's rose. The volume of SAB's shares traded on 27 November 2001 was less than 2 million. On 28 November 2001, it was more than 44 million.

On 19 December 2001 Interbrew secured interim injunctive relief, forcing the FT and the other newspaper publishers to preserve and, within 24 hours, deliver up their doctored copies of the document, on the ground that a person who, albeit innocently, facilitated the tortious act of another had to cooperate in righting that wrong. In March 2002 the Court of Appeal dismissed the publishers' appeals, holding that the public interest in Interbrew being able to take proceedings against the source for breach of confidence outweighed that of protecting journalists from having to reveal their sources. In July of the same year the House of Lords refused leave to appeal, following which Interbrew required the FT and the other publishers to comply with the court order for delivery up of the documents. They refused and complained to the European Court of Human Rights that the original decision to order them to disclose the leaked document to Interbrew violated their right to freedom of expression as provided in Article 10 of the European Convention on Human Rights.

The Court, holding in favour of the FT and the other newspapers, found that there had been a breach of their freedom of expression under Article 10. In its view

* Even though the disclosure order had not been enforced, that had not removed the harm since, however unlikely such a course of action appeared, the order remained capable of being enforced. It followed that that order constituted an interference with the newspapers' right to freedom of expression.

* On the basis that there was such an interference, it was next necessary to examine whether the interference was justified under Article 10(2).

* The interference was one which was 'prescribed by law' within the meaning of Article 10(2). It was intended to protect the rights of others and to prevent the disclosure of information received in confidence, both of which were legitimate aims.

* Since the aims of the interference were themselves legitimate, it next had to be asked whether that interference was necessary in a democratic society.

* Freedom of expression was one of the essential foundations of a democratic society and the safeguards guaranteed to the press were particularly important. Further, protection of journalistic sources was one of the basic conditions for press freedom. Without such protection, sources might be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital 'public watchdog' role of the press might be undermined and the ability of the press to provide accurate and reliable reporting might be adversely affected.

* Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect that an order for disclosure of a source had on the exercise of that freedom, such a measure could not be compatible with Article 10 unless it was convincingly justified by an overriding requirement in the public interest.

* It was for the national authorities to assess in the first place whether there was a 'pressing social need' for the restriction and, in making their assessment, they enjoy a certain margin of appreciation. However in this case the national margin of appreciation was circumscribed by the interest of democratic society in ensuring and maintaining a free press. That interest would weigh heavily in the balance in determining whether the restriction was proportionate to the legitimate aim pursued.

* Limitations on the confidentiality of journalistic sources called for the most careful scrutiny by the Court, whose role was not to take the place of the national authorities but rather to review the case as a whole, in the light of Article 10, and consider whether the decision taken by the national authorities fell within their margin of appreciation. The Court thus had to look at the interference and determine whether the reasons adduced by the national authorities to justify it were 'relevant and sufficient'.

* Article 10 protected a journalist's right, and duty, to impart information on matters of public interest so long as he was acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.

* Disclosure orders had a detrimental impact not only on the source in question, whose identity might be revealed, but also on the newspaper against which the order was directed, whose reputation might be negatively affected in the eyes of future potential sources by the disclosure, and on the members of the public, who had an interest in receiving information imparted through anonymous sources and who were also potential sources themselves.

* The public perception of the principle of non-disclosure of sources might suffer no real damage where it was overridden in circumstances where a source was clearly acting in bad faith with a harmful purpose and disclosed intentionally falsified information. However, the courts should be slow to assume, in the absence of compelling evidence, that those factors were present in any particular case.

* Given the multiple interests in play, the conduct of the source could never be decisive in determining whether a disclosure order ought to be made but would merely operate as one, albeit important, factor to be taken into consideration in carrying out the balancing exercise required under Article 10(2).

The IPKat thinks this was a close call, since the facts relate to a situation in which one of two morally innocent parties has to suffer: a company whose takeover target suddenly becomes more expensive through a deceitful breach of confidence and a newspaper which in good faith seeks to report and comment on matters of immediate concern to the commercial community. Merpel doubts that orders of this nature have much of a chilling effect in the United Kingdom anywhere, where the media are so powerful and the mechanisms for law enforcement so puny.

Thanks to the European Patent Office's presence on Twitter the IPKat can inform his readers of the latest version of things-to-come regarding the Community patent. According to the EPO webpage headed "EU Council agrees on next steps regarding the Community patent (EU patent)" the Kat-- who has not visited this topic since 5 December -- learns as follows:

"At the last [probably not the last, but certainly the latest] Competitiveness Council on 4 December 2009, Ministers reached agreement on a number of key elements constituting the future EU patent system.

Ministers agreed on:

* a draft Regulation on the EU patent - General approach;* a set of conclusions on the features of the envisaged unified patent litigation system* the arrangements related to the renewal fees and their distribution for the EU patent* a system of Enhanced Partnership between the EPO and central industrial property offices.

The substance of the agreed package as set out above comprises neither the translation arrangements for the EU patent [that information could be inferred from the use above of the word 'agreement' ...] nor the details of the EPC revision necessary to accommodate the EU patent [The IPKat feels tempted, when the time comes, to run a competition to see who can offer the most succinct and elegant revision; he's sure his readers could do a great job of it].

With the entry into force of the Lisbon Treaty, the European Union replaced and succeeded the European Community and has been endowed with legal personality. Therefore, the Community patent is now called the "EU patent" and the "European and Community Patents Court (ECPC)" has been renamed the "European and European Union Patents Court (EEUPC)" [Ugh. The IPKat hopes the EU never renames him].

The European Patent Office supports the creation of an EU patent and the establishment of a ... EEUPC, and sees the decisions taken at the recent Competitiveness Council as a promising step forward, although it remains difficult to assess when this will translate into an operational system [Another translation problem, but less politically loaded than the usual one].

Draft Regulation on the EU patent - General approach

The draft Regulation on the EU patent mainly deals with post grant issues, eg. the effects of the EU patent, compulsory licences, or the lapse and invalidity of the EU patent. The translation arrangements are no longer part of it. As a next step, the European Parliament will now have the opportunity to debate the EU Patent Regulation via the co-decision procedure (now referred to as "ordinary legislative procedure" under the Lisbon Treaty).

The basic concept underlying the future EU patent system is that the EU accedes to the European Patent Convention (EPC) and that the EPO grants EU patents. Such patents will be European patents having unitary effect in the territory of the European Union [That's the easy bit].

Revision of the EPC

On the basis of this concept, a revision of the EPC is necessary to put up the EU patent and to allow the EU to accede to the EPC. Issues such as the voting rights of the EU, the establishment of a Select Committee of the Administrative Council or the parallel designation of both the EU and its Member States in a European patent application will also have to be regulated in the EPC. The outcome of a EU patent related revision conference (Revision Act) will then have to be ratified by all EPC Contracting States (36 at present). ... the EPC 2000, which was revised in November 2000 at a Diplomatic Conference comprising only a fraction of the present EPC Contracting States, only entered into force on 13 December 2007, which gives an idea of the time-frame for the realisation of the present endeavour should it finally come to pass [Not sure: the delay here struck the Kat as being the consequence of low-priority apathy rather than high-priority vigour. Different considerations surely apply now.].

Translation arrangements

The Lisbon Treaty (Article 118 TFEU) has provided a new, specific legal basis for the creation of unitary intellectual property titles within the European Union. ... unanimity is still required for deciding on the language arrangements of such titles (and consultation of the European Parliament), all the other aspects thereof shall now be decided upon by qualified majority under the ordinary legislative procedure (co-decision procedure).

... the EU Council conclusions now propose that the translation arrangements for the future EU patent be dealt with in a separate Regulation. This obviously aims at focusing the future discussions on the language regime. As a next step, the European Commission will have to elaborate a proposal for a Regulation on the translation arrangements. It is unclear whether under Spanish EU Presidency a proposal will be presented [The Spanish have been characterised both as a block on progress and as valiant fighters for the protection of the interests of a large Spanish-speaking non-EU interest]. The future translation arrangements would have to be adopted by the Council acting unanimously [Good news for the Maltese?].

According to the EU Council conclusions, it is foreseen that that the EU Patent Regulation comes into force together with the separate regulation on the translation arrangements for the EU [... or not at all?].

The Council Conclusions in detail

Renewal fees

.. Select Committee of the Administrative Council should, once the Regulation on the EU patent enters into force, fix both the exact level of the renewal fees and the distribution key for their allocation. It is foreseen that the EPO retains 50% of the renewal fee income.

Enhanced Partnership

... the Enhanced Partnership ... should enable the Office to make regular use, where appropriate, of the result of any patent search carried out by a central industrial property office of the EPC contracting states on a national patent application, the priority of which is claimed in a subsequent filing of a European patent application. Such utilisation should be carried out in accordance with the already established utilisation scheme of the European Patent Network (EPN) among the EPC states. The Enhanced Partnership should be based on a European Standard for Searches (ESS), containing criteria for ensuring quality which are based on the agreed quality systems of the EPN. In addition to searches, the ESS should include standards on inter alia training, tools, feedback and assessment.

Main features of the ... EEUPC

The EEUPC would be established by a "mixed agreement"" (i.e. the competence to negotiate and conclude the envisaged agreement would be shared by the EU and its Member States) between, on the one side, the EU and its Member States and, on the other side, non-Member States which are Contracting States of the EPC.

The envisaged international treaty would establish a patent court system which has exclusive jurisdiction in respect of infringement and validity issues concerning European and EU patents. The EEUPC would comprise a Court of First Instance, a Court of Appeal and a Registry. The Court of First Instance would comprise a central division, as well as local and regional divisions in the contracting states to the agreement.

There are many outstanding issues regarding the unified patent litigation system which remain in dispute, such as the composition of the panels, the competence of the divisions of the Court of First Instance, the notion of technical judges, or the language arrangements.

In June 2009, the Council submitted a Request to the European Court of Justice (ECJ) on the compatibility of the draft Agreement with the EU Treaties. The judicial review of the ECJ takes place before the conclusion of the agreement and is given in the form of an opinion. The opinion is expected at the earliest by summer 2010 [This is useful information. The Kats have taken turns to look for it almost daily since they learned of the Request] ..."

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